THE THEORY OF THEFT
If you are not a thinking man,
to what purpose are you a man at all?
– Samuel Taylor Coleridge (1772-1834)
Human being is reasoning being.Theories and conceptualizations of morality are interlinked to a conception of what is essential to a human being. An English poet Samuel Taylor Coleridge questions as follows:- If you are not a thinking man, to what purpose are you a man at all? ‘Thinking’ is a process of considering or reasoning about something. ‘Knowledge’ is synonym of the word ‘thinking’. I will later on show how the word ‘Knowledge’ is relevant to this subject matter of theft. You are said to have committed theft of fruits, if you have taken them without being given. According to Smritis, if you took away any article belonging to another by whatever methods, you are said to have committed theft. Illegal gains made by persons adopting deceptive methods are also said to be theft. Depriving a man of his wealth clandestinely or openly, either during night or daytime, is known as theft/Steya. (Ref:- Kat.810, Nar. P.205-17). Right from Vedic Texts, the offence of steya (theft) is referred to in all Dharmasatras. According to Dharmasatras, Nar.p.223.1-5; Dharmakosa, pp 1745-1746, there are two kinds of thieves. 1. Aprakasha (concealed thieves) 2. Prakasha (open thieves). In 2004, in the case of Bhagwati Prasad Tiwari vs Regional Manager, Bank Of Baroda, it was held that ‘Theft’ are crimes which involve moral turpitude.
Gradation of theft :
In olden days, the gravity of offence of theft depended upon the value of article stolen and was classified into three categories. 1. Penalty should be proportional. 2. First offender should be considered leniently. 3. Habitual offenders should be severely. The King should inflict a just punishment as to the facts and circumstances of each case. If a man obtained a stolen property from a thief, he should restore it to the true owner. If it be no longer in existence, he must make a good its value and he must be made to pay an equal amount as fine. A significant rule is such that if knowledge of the offender about Dharma is a salient feature to decide gravity of offence. Gravity of offence of theft by a Vysya is double that of a Sudra, and that by Kshatriya four time that of a Sudra, and that of a Brahmana eight times that of a Sudra, or if a Brahmana learned in Dharmasatras, it was sixty four times. (Ref:-Gaut. P.237-16). In short, it can be said that ‘Knowledge makes all the difference’. Nar. p.231—52 Dharmakosa 1752. The purport of rule of Hindu law is ‘while ignorance of Dharma is an extenuating factor, the knowledge of Dharma is an aggravating factor’. Coming to English Law, ‘ignorance of law is no excuse’. In older days, there was an exception of Steya. In case of an articles of another is taken way to the extent necessary and special circumstances, such act was declared as not amounting to Steya/theft.
Compare section 378 of IPC with Smritis:
378. Theft.—Whoever, intending to take dishonestly any moveable property out of the possession of any person without that per¬son’s consent, moves that property in order to such taking, is said to commit theft.
Manu VIII 339:-
‘Whoever takes grass, fuel, flowers of trees and plant from any place for purposes such as feeding cows, for worship etc., commits no offences of Steya’
‘If a person takes two cucumbers or two melons, five mangoes , or five pomegranates, or a handful of oats or jujubes, from another man’s land or trees, he does not commit any offence.’
Illustration (p) of section 378 of IPC says as follows: ‘(p) A, in good faith, believing property belonging to Z to be A’s own property, takes that property out of B’s possession. Here, as A does not take dishonestly, he does not commit theft.’The definition of Steya given in all Smritis, more in particular, Kat.810 is similar and the same is comparable with section 378 of the Indian Penal Code,1860.
As per English law, in UK, the actus reus of theft is:
2. Property and
3. Belonging to another;
Whereas the mens rea of theft consists of:
2. Intention to permanently deprive.
I will now show the ingredients of theft in the Indian Law. As was held in Pyare Lal Bhargava (infra), to constitute theft the loss caused need not be permanent Even temporary dispossession, though the person taking the property intended to restore it, may constitute theft. Illustrations (b) and (1) of s. 378 of the Indian Penal Code clearly show that a temporary deprivation of another person of his property may cause wrongful loss to him. As to ingredients of section 378 of IPC, the Hon’ble Supreme Court of India in the case of Pyare Lal Bhargava vs State Of Rajasthan, AIR 1094, 1963 SCR Supl. (1) 689, it was held as follows: ‘The section may be dissected into its component parts thus : a person will be guilty of the offence of theft,
(1) if he.- intends to cause a wrongful gain or a wrongful loss by unlawful means of Property to which the person gaming is not legally entitled or to which the person losing is legally entitled, as the case may be: see ss.23 and 24 of the Indian Penal Code;
(2) the said intention to act dishonestly is in respect of movable property;
(3) the said property shall be taken out of the possession of another person without his consent; and
(4) he shall move that property in order to such taking.’
The Hon’ble High Court of Madhya Pradesh in the case of Gulab v. State of M.R, 1991 (2) M.P. Weekly Notes 182 has laid down the five factors which require a strict proof so as to hold that the evidence of theft has been made out. (See ‘Umashankar Namdev vs State Of M.P’ : 2003 (2) MPHT 237). They are :–
(i) dishonest intention to take property;
(ii) the property must be movable;
(iii) it should be taken out of possession of another person;
(iv) it should be taken without consent of that person; and
(v) there must be removal of the property in order to accomplish the taking of it.
Till the property is removed, no offence is committed:-
As was observed in Rakesh vs State Of Nct Of Delhi (2010), theft‖ as defined in Section 378 IPC requires that the accused should remove the movable property from the possession of another person. Actual removal of the movable property from the possession of one person to the other as explained in the said Section is necessary. Till the property is removed, no offence is committed, even if the offender had the intention to dishonestly take the property out of the possession of a person without his consent. (See, K.N. Mehra versus State of Rajasthan AIR 1957 SC 369, Ramratan versus State of Bihar AIR 1965 SC 926) Till removal takes place, actual theft is not committed and it may amount to an attempt.
As was held in R.S. Nayak vs A.R. Antulay & Anr, 1986 AIR 2045, 1986 SCR (2) 621, the main ingredients of the offence of extortion:- The main ingredients of the offence of extortion in s. 383, IPC are : (i) the accused must put any person in fear of injury to that person or any other person; (ii) the putting of a person in such fear must be intentional ; (iii) the accused must thereby induce the person so put in fear to deliver to any person any property, valuable security or anything signed or sealed which may be converted into a valuable security; and (iv) such inducement must be done dishonestly.
S390.Robbery.–In all robbery there is either theft or extortion.
When theft is robbery.- Theft is Srobbery if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful constraint.
When extortion is robbery.- Extortion is Srobbery if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.
Robbery is an aggravated form of theft or extortion:-
Robbery as defined in section 390 IPC is an aggravated form of theft or extortion. Theft is robbery if the accused in order to commit a theft or while committing the theft or carrying away or attempting to carry away the stolen property voluntarily causes or attempts to cause death or hurt to any person and puts the other person in wrongful restraint, fear of instant death or instant hurt or of instant wrongful restraint. For Section 392 IPC to apply, the prosecution has to establish that during the course of commission of the offence of theft the offender had caused or had intended to cause threat of death or hurt or to wrongful restrain (Malkhan Singh vs State of Haryana 1994 SCC (Crl) 1422). The Supreme Court observed in Ashfaq vs State (Govt. of NCT of Delhi) AIR 2004 SC 1253:―Thus, what is essential to satisfy the word ―Uses‖ for the purposes of Section 397 IPC is the robbery being committed by an offender who was armed with a deadly weapon which was within the vision of the victim so as to be capable of creating a terror in the mind of victim and not that it should be further shown to have been actually used for cutting, stabbing, shooting, as the case may be.‖
As was held in Amrish Devnarayan Rajput vs The State Of Gujarat : 2006 CriLJ 876, to prove the element of decoity, the prosecution is supposed to establish following facts:-
1. involvement of five or more persons as an accused in the commission of the offence,
2. commission of the offence or an attempt to commit the offence must be conjoint;
So, the intention of five or more persons/accused should be of committing a robbery or to make an attempt to commit robbery. Decoity is an offence which the legislature has made punishable at four stages, viz;
1. assembly for the purpose of committing decoity. Each of the person so assembled, is guilty under Section 402 of IPC;
2. making preparation for committing decoity. Any one who makes preparation for committing decoity is punishable under Section 399 of IPC;
3. an attempt by five or more persons (including the persons who aids such an attempt) to commit decoity; and
4. actual commission of robbery by five or more persons (including those who aid such commission).
Behaving or prone to behave in an untrustworthy, deceitful, or insincere way is nothing but dishonest. It is one of the salient features to constitute theft. The crime of theft is the taking of the property of other persons without their consent. Section 379 of IPC is a compoundable offence under section 320 of Code of Criminal Procedure,1973. If this is so, returning stolen property or repayment of the value of stolen property is a defence for the charge of theft. As is held by the Hon’ble Apex Court in the case of State of Karnataka v. Puttaraja (2004 (1) SCC 475), the social impact of the crime e.g. where it relates to offences against women like the case at hand, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact and serious repercussions on social order and public interest, cannot be lost sight of and per se require exemplary treatment. By creating awareness among the people, we must stop kidnapping of children of tender age and use them during the course of committing the offences of theft, chain-snatching and pick-pocketing etc. As rightly pointed out by Kohlberg, in his essay ‘ The Child as a Moral Philosopher’, ‘Child is a moral philosopher. In my view, moral development from childhood days is one of the salient features to stop moral turpitude offences like, Theft, Cheating etc and to make better society.